Blame Chuck Grassley. The US Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) is short three judges from the allotment - set by federal law - of eleven full time judges. It’s an important court. Many appeals of administrative actions of the federal government are heard by the D.C. Circuit. Today, the active court is split 4-4 between nominees of Republican and Democratic Presidents. There are six Senior Judges who work part-time. With the existing vacancies, that means that they work a lot. Five of those six Senior Judges were Republican nominees. Republicans fear that, should the three active vacancies be filled, the Court will actually better fit the framework imposed by the Constitution and the judicial enabling acts . Put simply, because the President fills all vacancies among the federal judges, the President is supposed to a lot of influence upon the makeup of the federal bench.
Chuck Grassley and other Republicans want the D.C. Circuit’s vacancies eliminated, not filled. Chuck Grassley knows that such an action can only be accomplished by amending federal law. Such a bill would never pass the Senate and would be vetoed by the President. So, instead, he’s led the movement to filibuster any new nominees to the Court, no matter how well qualified. Which would leave the DC Circuit disproportionately old and disproportionately conservative. A President who has already been President for six years would be allowed to make one nomination to the nation’s second most powerful court, while George W. Bush would have been allowed to make three such nominations, his father two, President Reagan, four. You get the idea.
When the Republicans ran out of fig leaves to claim lack of qualifications, they - like FDR when he tried to do the reverse and create more vacancies - tried to change the rules by use of the filibuster to effectively delete them (although Grassley’s method had the virtue of leaving the vacancies conveniently available for a Republican President to fill). As FDR did, Chuck Grassley got his comeuppance. For years, both parties have been trying to see how far they could push the other with filibuster abuse. The pendulum is now swinging back. And I agree that Republicans, once in the majority again, may seek to push the pendulum back further. But, given that the Constitution says nothing about the filibuster - such an effort - as with what happened today - is always subject to the reaction of the electorate. Which is probably about what the Founders intended.
Remember - the two sides agree on how much money to spend. The GOP is asking to go to conference about repealing, defunding, or delaying Obamacare. And, remember, going to conference on this just means going to conference in a couple of months where the demands will be more numerous. If the Democrats want to keep their lunch money, they will hold fast. And, right now, there’s no one to negotiate with. John Boehner can’t regularly carry the House if he has the burden of needing 95% of his caucus for every big vote.
The early word is that another alternative would be for the House to pass limited CRs for the parts of government they prefer stay funded. This seems like a pretty tough sell to me at first glance because of what, by definition, they would leave out. If they, for instance, fund parks over food stamps or cancer research, that strikes me as a pretty easy parry for Harry Reid to make. I guess we will have to wait and see.
The shutdown is going to be harmful, but a debt ceiling impasse has the potential to be economically catastrophic. If the shutdown leads to a solution for the debt ceiling, it’s hard to see how it will not be worth it.
First, Syria. I’ve been saying this ever since the President’s speech last week. You don’t preface a decision to send a use of force resolution to Congress with discussion about being the world’s oldest constitutional democracy if you intend to ignore that democracy’s legislature when it doesn’t give you the approval you are seeking.
If the President did that, it would be a political disaster. His entire fall agenda for Congress - a substantial agenda - would be at risk: government shutdown, potential default, cuts to entitlement programs. Calls for Democrats to repudiate the President in order to save their seats in Congress in 2014. If the President wanted to preserve his right to act unilaterally, he should have acted unilaterally. Acting after Congress turns you down isn’t acting unilaterally, it’s acting in direct defiance of Congress. That would be an impeachable offense in the minds of many Republicans. The last time a President did that on a significant matter was President Reagan and Iran-Contra (sending funds to the Contras in direct contravention of the Boland Amendment).
So, with all that said - what’s the President doing to try and get his authority? With respect, continuing to allow his advisors to comment upon his ability to move unilaterally after a “no” vote isn’t helping. I RT’d an article by Olivier Knox earlier today which I’m hoping represents a trend change; comments by advisors saying that the President had no plans to act in defiance of Congress. Notably, I think he needs to do more of this to have any chance to win a House vote. Republicans may vote “NO” just to see if the President is reckless enough to defy them. The only thing to stop this is to clearly signal - if we don’t get a “YES” vote, we’re not doing this, and it’s on you. Some Democrats may also cast a “NO” vote just because it helps them in the district and, heck, the President’s said he really doesn’t need my vote anyway. Feel free to say that going forward, the President reserves the right to act if conditions change or in other situations. But, all things being equal, if the President wants a shot to win the House, he needs to make it clear that he’s not giving anyone hope of a free vote.
Second, the Fed Chair. According to the Wall Street Journal, there are indications that at least three Democrats on the Senate Finance Committee would not vote to send a potential Larry Summers nomination as Chairman of the Federal Reserve to the Senate floor. If this is well-founded, it’s a break-the-glass moment for the President. Sure, it’s possible that a Republican or two could give the President a vote just to make more trouble or (gasp) in deference to the President but I doubt it. Given a chance to kill any nominee to the Fed, I think Senate Republicans have to take it. Sure, they don’t know the next devil to come through the doors….OK I just looked at the GOP members of Senate finance. I don’t see one “yes” vote for Summers in that group.
My reaction? Good for them. I give the President credit for often seeking the middle ground between his position and the GOP. But, sometimes you also need to seek out consensus in your own party. As others have commented before me, if you are the President and you think that the Administration did a bang-up job in managing the crash of ‘08 which was handed to it, then folks associated with that team are logically going to come up again in your job searches. Thus Geithner is mentioned as a Fed candidate. When he declines, Summers is mentioned. That, in my view, is a cr*ppy criteria. ”Because he was with me in one foxhole, I’m sticking with him. ” Why? Simply because the jury is still out on whether the President’s job in 2008-2010 was a job well done. If we are grading pass/fail? It’s a pass. We didn’t slide into a depression. Did we do enough stimulus? There’s a lot of evidence that we did not.
Plus, prior to the “foxhole” of 2009-10, it bears mentioning that Summers was dead wrong on the signature issue which could have changed the history leading up to the crisis - regulation of derivatives. Sure, Alan Greenspan was wrong as well but we’re down on Greenspan as a result, right? Indeed, it’s fair to ask - what decision of Greenspan’s tenure would Summers have made differently? It’s also fair to ask where Larry Summers stands on the “employment” half of the Fed’s mandate. And Senators telegraphing opposition are a sure way to get some of these questions answered.
I’m still not sure I’m opposed to Larry Summers’ candidacy. There are a lot of potential candidates who don’t have his warts. But, if the President insists on sending his name up there, I guarantee I’ll be watching the hearings.
Senator Rubio is as good as the Senate (or House for that matter) GOP gets these days. And he is smarting after being called out by the right wing of the GOP on fronting the Gang of Eight immigration bill in the Senate. So, he took 10 minutes of Senate time today to announce his new bright idea for helping the middle class. Shutting down the government until the President signed a continuing resolution (not even a budget LOL) repealing Obamacare.
Let’s get the substance of the argument in his address. Senator Rubio went and talked to his constituents in Florida who run small businesses and asked about their concerns about Obamacare. Fair enough - never a bad idea to speak to some small business owners about what’s going on out there in the real world.
Senator Rubio says he spoke to the owner of “Gatorland” - a theme park - he has 100 full time employees who work for him. He provides them health care coverage (with employees sharing premium costs). Coverage with which employees are happy. They have doctors with whom they are comfortable. There is a problem. Health care premiums are going up. They don’t know how much yet. [Back to that in a second.]
So Gatorland’s options are:
(1) Change insurance which costs less. Fully agree - that may be a bad option from many employees’ point of view.
(2) Reduce a bunch of people under 30 hours and kick them off of Gatorland health care. Also not a great option.
(3) Or Gatorland can kick everyone off and pay a fine. Employees go get health care from state exchanges. As this could disrupt employees’ relationship with doctors, also not a great option.
A few thoughts. Love how “(4) Gatorland could absorb the increased premium costs - as they have (presumably) done for years” isn’t even DISCUSSED as an option. Not saying that should be the option chosen but funny how it’s not even mentioned as an option. This even though this is what I’d guess 90-95% of employers were doing nationwide prior to Obamacare. And what many will continue to do. Not mentioned - in those states where premiums go down - will Rubio push employers to pass savings onto employees? I wonder. Remember - a lot of employers favored Obamacare because it would reduce the incidence of these types of choices - more on that in a sec.
Rubio notes Florida doesn’t have exchanges yet. That, by the way, isn’t the federal government’s fault - it’s Florida’s. Last I checked, Florida had a GOP governor. Maybe Rubio should give him a polite shove in the right direction?
But, the more basic issue here is what’s left out of any analysis by Senator Rubio - is how big will these not-yet-announced-cost increases be? According to the Florida Sun-Sentinel, Florida average premium costs climbed 58% over the 8 years leading up to Obamacare’s passage. So, there was a clear trend of premium increases in Florida with no regulation at all. Premiums are dropping - that’s dropping - in California, New York, and Oregon. So, the point I’m making is not a small one. Rubio may be right, but he may be wrong. Or the increases could be far less than the pre-Obamacare trend. Put simply, Rubio’s whole thesis - that Obamacare is making things worse is, at best, unproven and may very well be false if California and New York are any indication.
Yet, based solely on predicted increases (which may be completely bullsh*t), Senator Rubio proposes as a solution to shut down the federal government until President Obama capitulates to repeal by signing a continuing resolution to fund the budget. I put LOL above because Senator Rubio won’t even offer a year’s budget agreement for such a collapse by the President. He’d offer a continuing resolution. Because if the President signed one CR repealing Obamacare, why not offer up another CR with the elimination of Social Security in Janauary?
Here’s a news flash for the not-deluded. The President has staked his legacy on Obamacare. He was reelected after passing Obamacare. He will never, repeat never, sign a bill repealing it. If he did, DEMOCRATS would impeach him. Seriously, I’d be ticked if a high school student council did this sort of policy and political analysis. It’s kindergarten level political logic.
What’s just dishonest (as opposed to uninformed) is that Senator Rubio claims that it’s DEMOCRATS who don’t want to fix any issues with Obamacare - and that “it’s full speed ahead.” This is sophistry. Democrats would be happy to fix it. It’s Republicans who want to completely trash it. That’s “fixing it” to the Rubio-led GOP.
This is how desperate Marco Rubio is to reclaim street cred with the GOP. He’s willing to pose a strategy that would even make John Boehner laugh and say “buddy, there’s no way that’s happening.” Somebody wants to be President. And he is not afraid to suggest pie-in-the-sky public policy to get there.
It’s one thing to support ideas one knows will never become law. I would have never argued that supporting a Balanced Budget Amendment to the Constitution or a Human Life Amendment to the Constitution are so unlikely so as to be disqualifying someone as out of the political mainstream. That would be ridiculous. I’m pretty sure President Bush supported both. They are unlikely to become law, sure, but they are standalone policies worthy of consideration (and in my view - polite rejection). What I would argue is destructive is taking a pie-in-the-sky policy and tying it to something which NEEDS to become law. Such as the budget. The GOP first faced media and then public backlash in 2011 when back-benchers argued that the debt ceiling extension needed to be tied to the passage of a balanced budget amendment to the Constitution. This is comparable. I think Mitt Romney bought onto this logic to win the GOP primary. I think losing for so long and so badly prior to the first debate in late September almost enabled him to skip serious policy scrutiny of this position and still get elected. Rubio won’t be so lucky. He is also hurt by the lack of any tie between the government shutdown and Obamacare - none. Rubio spent 10 minutes making his case - watch above - I was certainly unconvinced. That’s not to say that repealing Obamacare isn’t a legitimate public policy position - it is. It just has nothing to do with shutting down the government. At least one fellow Republican Senator (McCain) is already saying this openly. And where McCain goes, others will follow.
Oddly, the last thing Senator Rubio wants is an actual shutdown (let alone a debt ceiling impasse which could cause even greater economic chaos) based upon this position. Because it will never, never succeed.
In honor of Independence Day, we’re sharing the story of Congress and Uncle Sam.
In response to the Cold War era anxiety over “disciplined communism,” Congress wanted to make “the symbol of ‘Uncle Sam’ official and permanent.” Acting in accordance with this desire, the Senate issued a report in 1961 chronicling the history of Uncle Sam. The report states that Samuel Wilson of Troy, New York, the model for Uncle Sam, was born in 1766. He enlisted in the Revolutionary Army at the age of 14, became a bricklayer, and later opened a slaughterhouse where he inspected beef for the Army during the War of 1812. Meat that was inspected by Wilson was stamped “EA-US.” His staff joked that the US stamp stood for Uncle Sam, Wilson’s nickname, instead of United States. Over time Uncle Sam became synonymous with the United States.
However certain the Senate was with their findings, the House of Representatives became concerned that there was another Samuel Wilson and that their identities had become crossed. This concurrent resolution, S. Con. Res. 14, was passed by the House on September 6, 1961 with a series of amendments that struck out Wilson’s birth and burial places. After a bit of back and forth, the final version of the resolution as passed by both the House and Senate states that Samuel Wilson, of Troy, New York, was indeed the progenitor of the national persona of Uncle Sam.
"Day We Celebrate" by Clifford Berryman, 7/4/1903, U.S. Senate Collection (6010432)
S Con Res 14, 9/6/1961, Records of the U.S. House of Representative
Look, there are lies to Congress and there are LIES to CONGRESS. Director of National Intelligence’s James Clapper’s most recent one is deserving of scorn.
When asked - a day in advance of his testimony - the following question by Senator Ron Wyden - this is what happened on hearing day:
SENATOR WYDEN: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”
DNI CLAPPER: No sir … not wittingly.
As we now know, this was not true. The NSA collects and stores data about - if recent stories are believed - practically all Americans who use cell phones or the internet. When called on this statement on NBC, Clapper basically alleged that this was a “when did you stop beating your wife” question. Which is ludicrous. That particular formula describes a question so leading that answering the question likely communicates a different impression than the respondent would like. Here, the answer does not leave the respondent with any such lingering misimpressions. Clapper clearly preferred to not answer the question truthfully, and so he lied, with the hope that Senator Wyden wouldn’t be able to figure out a way to expose the lie without (a) violating classification rules, and (b) embarrassing the Administration of his own party. (I think (b) to be an iffy assumption).
What bothers me most about this is that the Administration claims to both want the debate over these measures as well as change (if not end) the war footing attitude that continues to breathe life into them. Yet, the Administration’s DNI, by lying, directly inhibited (albeit briefly) any such debate.
I agree with Kaplan. If the debate is important and a competent replacement can be found, ending Clapper’s tenure is the way to show that things really have changed and that an honest debate about these practices is welcomed.
I’m having some difficulty sorting through all of the allegations surrounding this most recent NSA leaker Edward Snowden.
Before proceeding to the merits, I do have some thoughts on the chances he will be asked to return to the United States to face justice. Hong Kong is part of China. It’s complicated for sure, it has a free press, a freer economy, etc… But, it is still part of China. And it has an extradition treaty with the United States. At bottom, I can see no reason why - should the foreign policy apparatus within the Chinese government have influence over the decision - the government would not want to rapidly extradite Snowden back to face U.S. justice. Simply from a transactional standpoint - isn’t there a far higher chance of Chinese citizens fleeing to the U.S. to seek asylum than the other way around? Wouldn’t China want to accede to U.S. wishes to be more confident about obtaining the return of its whistleblowers when the time comes? It may be more complex than this, I will grant you. In the U.S., asylum is granted by the executive - under a statutory scheme which provides for broad discretion - and is reviewable by the Courts under that standard (i.e. deferring to the underlying decision except in certain cases of error). Josh Marshall presented a reader email along these same lines this morning.
On the merits, there are two types of programs which have been reported. One is the archiving of US citizens phone records (along with geolocation data) and the other is archiving - for all practical purposes - Americans’ email and IM chats. For a better explanation of all of this, check out the Will Saletan piece I tweeted about earlier today. For the internet stuff, a warrant is needed if a search of the email involves messages between American citizens. Not so, if email or chatting goes on outside of the U.S.. As to the controversy which has arisen, I tend to blame Congress for two reasons.
One, I believe the Administration when they say that Congress has been briefed - or offered briefings - on these issues. But, I’m a cynic here, Representatives and Senators think that avoiding the briefings provides them with deniability. To remix a few quotes from Jack Nicholson in “A Few Good Men” - they can’t handle the truth but they want him on that wall anyway. They fail to realize that the briefings are also about us, not just them. The more people briefed, the more of an intelligent debate we will have on bills such as Patriot Act re authorization or on amendments to FISA.
Two, on MSNBC this morning, Glenn Greenwald mentioned that Sens Udall and Wyden had been protesting the scope of this surveillance for months, if not years. Greenwald’s point was that, if one reads between the lines, they are limited in what they can say in protest without becoming leakers themselves. Which may or not be true. But, if it is true, this is again Congress’ own fault. Congress just reauthorized the laws which permit this activity. If it did so while being so uninformed, shame on them. Congress also has the ability to specifically limit how much discretion these agencies have. Doing so, however, was and is politically perilous within the mainstream of both the Republican and Democratic parties (moreso in the GOP but Senator Feinstein and the President both seem awfully supportive of the current powers held by the NSA). The most obvious fix?
It may be to cut both the President and Congress out of the loop as interested parties. Greenwald alluded to the idea that the Administration has been heading off legal challenges to these programs by arguing that no one has standing to sue. Because no American can, given the classification involved, verify that he or she is either having their data archived or being eavesdropped upon, both the Bush and Obama Administrations have been succeeding in having lawsuits dismissed on the constitutionality of the programs for lack of standing. We have some vague notion that mistakes and overreach have already occurred but Senators have said they can say no more than that. Perhaps there will be pressure put upon the Administration to allow sufficient declassification so as to allow the federal courts to weigh in on the expansive interpretations which Sens. Wyden and Udall have been talking about. (See here.)
One thing I don’t need to hear about? Public polling on the issue. Constitutional rights - and protections which derive from them - rarely poll well.
Wolf Blitzer on CNN at 1:51 pm EST on Wednesday 4/17/13. He was, of course, speaking of the arrest of the Boston bombing suspects. Which didn’t actually happen for two more days.
This was a screw up, and to their credit, CNN acknowledged this was a screw up. Other media outlets who screwed up last week were not as generous. The New York Post reported 12 fatalities in the bombing and then lamely and wrongly tried to accuse the NY Times as the source of its report. I don’t think the Post ever retracted its report. It also put two innocent men on the front page of the paper with the huge headline “BAG MEN” - although the story correctly noted that law enforcement officials briefly circulated the subject photo seeking information, they never implied that the two were suspects who were actively being sought. Rupert Murdoch attempted to offer a defense over the weekend which left out any discussion implication created by the use of “BAG MEN” (which most Americans understand to have an obvious criminal connotation beyond simply meaning men with bags) in humongous letters on the paper’s cover. But, hey, he only had 140 characters.
Back to CNN and the premise I quoted. Was it important for CNN to get the arrest news out there when they did? I’m not sure it was. If there really was an arrest, law enforcement authorities would be sure to rapidly brief the media. Or go on the record with the news. (On Friday, Mayor Menino went on the record to confirm the arrest before the press conference which followed about an hour or so later.) If you listen to podcasts, I’d recommend the Slate weekly political “Gabfest” which made this point very well this past Friday as the events were unfolding - this is not really a scoop in any sense of the word. Everyone will eventually - and even quickly - know this news. The race to be first is therefore more about inside-baseball bragging rights than it is any public service. (Listen to the podcast for more.)
Indeed, the public could be argued not to be served at all even if the news was true. It’s not hard to imagine some local law enforcement official leaking to John King (as we are led to believe by King as what actually occurred) the news of the arrest. But, does that source know that the criminals were acting alone? The source may or may not know that. It seems in hindsight that this was a federal investigation which the local authorities aided. I’ve read reports that local authorities were actively kept in the dark (maybe because of the Wednesday leak). So, isn’t it possible that the authorities would want to briefly embargo the news of the arrest so as to be able to surprise potential confederates? I don’t have a hard time imagining that at all even though it was apparently not the case here.
I used the term “inside baseball” above. I am reminded of sports. If you follow sports news closely, you may know that there is a bit of a rivalry between ESPN and other sports news outlets. Fox Sports has a football reporter, Jay Glazer, who is pretty well sourced with players and agents as well as some teams’ management. So, when a player is traded, Glazer is often the first to know (and tweet). ESPN occasionally latches onto these reports without giving credit and sparks fly. ESPN sometimes beats Glazer and promotes being “first” or “exclusive.” (Heck, sometimes they do this even after being beaten by Glazer or others but that’s another post.) Which is fine. But, all in all, no one really cares that much. And I don’t think Jay Glazer even thinks he’s providing a public service by being first. I do think he takes pride in being first (rightfully so) and he knows that being first improves his brand. And that’s fine.
But, Wolf Blitzer seems to be saying that rushing into that story (and I have no doubt that CNN knew who was and wasn’t reporting on this) was part of a public service. And I really don’t think that’s all that clear. In fact, I’m having trouble marshaling arguments that it would have been much of a service at all.
It’s important to get this information out there to the American public and important to get this information out there in general, but it’s much more important to make sure that we’re precise and accurate.
Could this just be a sign the U.S. News rankings are way off and don’t really reflect the job market? In part, yes. The magazine’s annual list does incorporate employment outcomes as part of its formula, and some law firms pay an absurd amount of attention to it. But after going back through the data and ranking the 25 schools with the lowest underemployment, I found that only 15 of them could be found in the U.S. News Top 25. The other 10 included schools like number #76 LSU and number #126 Campbell University.